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Vermont Driving Push for Federal GMO Labeling Law

June 30, 2016

Kristine A. Tidgren

Barring unexpected immediate Congressional action, Vermont Act 120, the nation’s first mandatory GMO labeling law, will go into effect tomorrow. What does this mean for the rest of the nation? Most likely it means that we will see preemptive federal GMO labeling legislation in place by at least year-end .

The new Vermont law requires all food produced from “an organism in which genetic material has been changed” to be labeled. If that food is sold by a retailer, an “easily found” label must state, “Produced entirely or in part by genetic engineering,” as the case may be. The law excludes food sold by restaurants, as well as alcoholic beverages, meat, milk, and eggs, as long as those foods are not combined with other genetically-engineered (GE) ingredients. The law requires GE labeling for raw agricultural commodities, as well as processed foods where the GE material comprises more than .9 percent of the total weight of the food. Manufacturers are required to place the labels on all packaged foods, and retailers are responsible to label raw, unpackaged agricultural commodities. If such labeling is absent from unpackaged food, the retailer must possess a sworn certificate from the producer or manufacturer, certifying that the food was not produced with GE. Additionally, the Vermont law prevents manufacturers from labeling or advertising their products as “natural” if they contain any GE material.

Manufacturers are liable for fines up to $1,000 per day per product for labeling violations. These fines are triggered if the unlabeled food is offered for sale by a Vermont retailer, whether or not the manufacturer intended the product to reach Vermont shelves. While not liable for unlabeled packaged food they did not produce, retailers are subject to fines for selling unlabeled, unpackaged foods.

The law provides a six-month grace period (until January 1, 2017) for food that was packaged and distributed prior to July 1, but not yet sold. The Vermont Attorney General has suggested that he will not actively enforce the law until that time.

This window gives Congress an opportunity to pass a federal law preventing one state from setting the effective GMO labeling standard for the rest of the country. As it stands, any manufacturer whose food product may be sold in Vermont is forced to abide by the Vermont law or face the stiff penalties. Some nationwide manufacturers have already changed their food labeling across the board to comply with the law. Smaller manufacturers (and some large manufacturers) have decided to restrict the products they offer in Vermont. Consequently, Vermont consumers could face fewer food choices beginning this weekend.

Meanwhile, it appears certain that Congress will act to set a nationwide standard. Whether that will happen before the July recess is unclear. Proposed legislation, which reflects a compromise by Senators Stabenow and Roberts, would preempt state GMO labeling laws and require that manufacturers inform consumers of the GE status of most foods containing GE material. It would exempt all foods where meat, poultry and egg products are the primary ingredient. This information could be offered through a label, a federally-approved symbol, a quick response (QR) code accessible through a smart phone, or (for small manufacturers) through a company website.

The push for federal legislation is driven by the concern that manufacturers will be subject to a number of different (and perhaps conflicting) state laws. Although no constituency (neither proponents nor advocates of GMO labeling) seems wholly satisfied by the proposed federal law, many opponents of GMO labeling believe that a patchwork of differing state laws would be worse.

Even if the Vermont law is only in place for a few weeks, it likely will have been the impetus for a new federal mandate.

We will keep you posted.

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